SW Legal studies in Business

State Does Not Recognize Claim of Third-Party Negligence for Spoliation of Evidence

Appeals court held that the state of Arizona does not recognize a claim for negligent spoliation of evidence by a third party. Hence, when a hospital negligently lost material from a surgery needed as evidence in a malpractice case, the hospital could not be sued.

Topic Court Procedure
Key Words

Evidence; Spoliation; Third-Party Negligence

C A S E   S U M M A R Y

Lips underwent a total left hip replacement surgery at Scottsdale Healthcare. The hip prosthesis implanted was made by Encore Medical. A year later, x-rays showed that parts of the prosthesis had broken and surgery was required to replace much of the prosthesis. A pathologist examined the portions of the prosthesis removed in the repair surgery and diagnosed a “left hip failed prosthesis.” Later, Healthcare lost or destroyed the portions of the prosthesis that had been removed during surgery despite Lips’ request that the material be saved. Lips sued Encore for products liability and sued Healthcare for negligence for losing the prosthesis. To do so constituted spoliation of evidence. That made Lips’ case against Encore more difficult. The trial court dismissed her claim against Healthcare. Lips appealed.


Affirmed. Arizona does not recognize a claim for third-party negligent spoliation of evidence. For a spoliation claim, one must show the intentional destruction of evidence. That was not done so the claim is dismissed.


Lips v. Scottsdale Healthcare Corp., ---P.3d--- (2009 WL 2611316, Ct. App., Ariz., 2009)

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